This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In many states, an estate in fee tail, as it originally existed, is no longer recognized, it having been in some changed by statute, and in others abolished.51 In several states, including New York, an estate tail is changed into an estate in fee simple in the donee named.52 In other states the donee named has an estate tail, but after his death, the estate becomes one in fee simple in
51. 4 Kent. Comm. 14; 1 Stimson's Am. St. Law, Sec. 1313; 1 Sharswood & B. Lead. Cas. Real Prop. 1ll et seq. See, for some judicious remarks upon the legislation on this subject, 1 Dembitz, Land Titles, 115-125.
In South Carolina, the statute De Donis has never been in force. and conditional fees exist there as at common law. Burnett v. Burnett, 17 S. C. 545; Powers v. Bullwinkle, 33 S. C. 293, 11 S. E. 971. In Mississippi, likewise, the statute has never been in force. Jordan v. Roach, 32 Miss. 481, 617.
In Iowa the state De Donis has been decided not to be in force. Pierson v. Lane, 60 Iowa, 60, 14 N. W. 90, and the existence of a common law conditional fee has been recognized. Kepler v. Lar son, 131 Iowa 438, 7 L. R. A. (N. S.) 1109, 108 N. W. 1033; Sagers v. Sagers, 158 Iowa 729, 43 L. R. A. (N. S.) 562, 138 N. W. 911. And also in Oregon the statute referred to is not in force. Rowland v. Warren, 10 Ore. 129.
In New Hampshire it was held that the statute was impliedly repealed by the state statutes relating to the descent and devise of property, so that words which would, by force of that statute have created a fee tail estate, create a fee simple estate. Jewell v. Warner, 35 N. H. 176; Merrill v. American Baptist Missionary Un ion, 73 N. H. 414, 3 L. R. A. (N. S.) 1143, 111 Am. St. Rep. 632, 6 Ann. Cas. 646,-62 Atl. 647. So in Maryland the statute as to descent has been held to put an end to estates in fee tail general. Tongue's Lessee v. Nutwell, 13 Md. 415, 424; Posey's Lessee v. Budd, 21 Md. 477.
52. See, as to such statutes. Smith v. Greer, 88 Ala. 414, 6 So. 911; Ewing v. Shropshire, 80 Ga. 374, 7 S. E. 554; Mcllhinny v. Mcllhinny, 137 Ind. 411, 24 L. R. A. 489, 45 Am. St. Rep. 186, 37 N. E. 147; Brann v. Elzey, 83 Ky. 440, 7 Ky. L. Rep. 539; Posey's Lessee v. Budd, 21 Md. 477; Nicholson v. Fields, 111 Miss. 638: 71 So. 900; Wendell v. Crandall. 1 N. Y. 491; Leathers v. Gray, 101 N. C. 162, 9 Am. St. Rep. 30, 7 S. E. 657.
[Sec.24 his issue,53 and in others the donee acquires a life estate with remainder in fee simple to his issue or, sometimes, to those to whom the estate in fee tail would pass on the death of the donee "according to the course of the common law."54
Of the various classes of statutory provisions above referred to, the one last specified appears to be particularly objectionable, since, by creating a remainder in persons other than the donee named, it tends to render difficult, if not impossible, the immediate alienation of the lands; and the same objection applies to the second class, unless it be conceded that the original donee, as having a fee tail, may bar the remainder thereon in favor of his issue.
Where the statute gives to the donee named a life estate, with remainder to those to whom the estate in fee tail would pass "according to the course of the common law," the remainder would seem properly to be in the eldest son, as being the common law lineal heir.55 But it has been assumed, ordinarily without discussion, that all the children of the first donee share equally.56 Under any statute which thus substitutes for a common law fee tail a particular estate in the donee named and a remainder in fee simple in his issue, any remainder sought to be created upon the estate in fee tail will be divested in case there are issue born to the first donee named,57 unless there is, as is the case in some states, a statutory provision saving the rights of the remainderman or remaindermen named. Legislation of the character referred to is to some extent of questionable validity as applied to an estate in fee tail created before its adoption. If one has an estate in fee tail with the right to bar the entail by conveyance or common recovery, he has the practical equivalent of a fee simple, and the legislature is, it seems, without power to cut down his interest to a Life estate. But legislation changing his estate into a fee simple would be valid, since it merely does, to his benefit, what he already has power to do himself, and the reversioner or remainderman, as he had previously merely a possibility of actual enjoyment, is not in a position to complain.58
53. See St. John v. Dann, 66 Conn. 401, 34 Atl. 110; Phillipps v. Herron, 55 Ohio St. 478 45 N E. 720; Lippitt v. Huston, 8 R. I. 415, 94 Am. Dec. 115. That under such a statute the issue of the original donee in tail have no es tate until the latter's death, see Dungan v. Kline, 81 Ohio St. 371 90 N. E. 938; Dart v. Dart, 7 Conn. 250.
54. See Horsley v. Hilburn, 44 44 Ark. 458; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18 Ann. Cas. 1912A 540, 128 S. W 581; Doty v. Teller, 54 N. J. L 163, 33 Am. St. Rep. 670, 23 Atl 944; Wood v. Kice, 103 Mo. 329 15 S. W. 623; Lehndorf v. Cope
122 111. 317, 13 N. E. 505
55. Such a view was adopted in Frame v. Humphreys, 164 Mo. 336, 64 S. W. 116. But it appears to be abandoned in Summet v. City Realty & Brokerage Co., 208 Mo. 501, 106 S. W. 614; Charles v. White, 214 Mo. 187, 21 L. R. A. (N. S.) 481, 127 Am. St. Rep. 674, 112 S. W. 545.
56. Horsley v. Hilburn, 44 Ark. 458; Wilmans v. Robinson, 67 Ark. 517, 55 S. W. 950; Frazer v. Board Sup'rs Peoria County, 74 111. 282; Turner v. Hause, 199 111. 464, 471, 65 N. E. 445; Moore v. Reddel, 259 111. 36, 102 N. E. 257; In re Kelso's Estate, 69 Vt. 272, 37 Atl. 747.